UNREASONABLE POLICING: OFFICERS SHOULD MAKE INDIVIDUAL RIGHTS EXPLICIT

On February 4, 1999, a bus on its way to Detroit from Fort Lauderdale made
a scheduled stop in Tallahassee. With the driver's permission, three
members of the Tallahassee Police Department boarded the bus to randomly
question passengers and search their bags for drugs.

One officer knelt in the driver's seat, facing the passengers, while the
other two worked the bus from back to front.

The case is a good example of what has become a routine abuse of police
authority in people's everyday lives, all in the name of the war on drugs
and, more recently, in the name of "security." Just as the Volusia County
Beach Patrol routinely profiles weird or suspicious looking people on
county beaches, questioning them, photographing them and turning their
findings into black lists as preventive measures, cops and courts across
the country have slowly eroded individual rights of privacy by adopting and
endorsing techniques fit for a police state.

That day in Tallahassee, passengers were not required to submit to the
search, answer questions or even stay on the bus while the cops did their
business.

But nobody told them that. Only passengers versed in the subtleties of
search and privacy laws would have known that. Most people are better
versed in the flash of a police shield, with which most people don't feel
comfortable quibbling. (The lead officer on the bus in Tallahassee had
searched 800 buses in the previous year. Only six or seven, out of at least
5,000 he had questioned, had declined to play along.) On the bus, the
officers noticed two passengers wearing baggy clothes even though it was a
warm day. They patted down the passengers and found a little more than a
pound of cocaine on them. The men were arrested and later convicted.

A year later, the United States Court of Appeals for the 11th Circuit, in
Atlanta, threw out the conviction, arguing that it was the result of an
illegal police search.

When an officer leans within 12 inches of a passenger's face and asks to
frisk him or search his bags, no reasonable person could feel free to
disregard the request, the court ruled. And no reasonable court could find
the cops' procedure "uncoerced and legally voluntary."

Toughs will argue the absurdity of letting criminals go on a technicality.
But the point wasn't that two drug dealers should be set free (and in any
case the drug war isn't lacking for prisoners). The point was that policing
intrusions into people's daily lives are becoming alarmingly routine.

The lead officer in the Tallahassee case even called his bus hop "routine."
The everybody-does-it school of reasoning has become a favorite
justification of police agencies (just ask the Beach Patrol), but trampling
all over the Bill of Rights isn't anymore justified when it's a stampede.

The Court of Appeals' ruling was itself appealed to the U.S. Supreme Court,
which since the m id-1980s has been chiefly responsible for unleashing the
stampede.

Hearing oral arguments earlier this week, Justice Antonin Scalia who in
1996 endorsed pulling drivers over on minor traffic violations expressly to
search for drugs said he'd be happy to be searched if he was a Greyhound
bus passenger.

Scalia, of course, is white, rich, and as comfortably ensconced from the
culture of bus travel as his legal philosophy has been from the rights of
individuals.

Yet in 2000 the court decisively reaffirmed the importance of giving
suspects their Miranda rights ("You have the right to remain silent"), a
standard codified in law in 1966 to prevent police officers from abusing
their authority.

The Tallahassee case is a chance to create a similar standard regarding
innocent individuals who are treated, however briefly, as suspects. Police
officers should make explicit the right of anyone not to submit to random
interrogations, searches or photos, whether on a beach in Volusia County,
on a long distance bus, or on the Interstates (where such abuses are most
common). For now, legal rules of police conduct protect innocent people
less than they do suspects in custody.

That, far more than the odd criminal set free on a technicality, is what's
absurd.